Opinion
No. 3647.
Decided May 6, 1947.
Failure of the Trial Court, when properly requested, to clearly and accurately instruct the jury upon a vital issue is ground for reversal. The test to be applied in determining the market value of land taken for highway purposes is not a matter of such common knowledge as to make it unnecessary for the Trial Court to charge the jury in accordance with proper requests on the subject, and the Court's failure so to do is reversible error. A general exception to the Trial Court's failure to charge as requested is valid where the Court fails to require the excepting party to specify the omissions claimed.
APPEAL, from the commissioners' assessment of damages occasioned by the layout of a highway over plaintiff's land in Conway under the provisions of R. L., c. 100, s. 3. The appeal to the Superior Court was taken in accordance with Laws 1945, c. 188, pt. 4, s. 17. Trial by jury resulting in a verdict for the plaintiff in the amount of $2,000.
The plaintiff excepted to the failure of the Court to grant his request for instructions Nos. 1 to 5, inclusive. The opinion for reasons hereinafter stated will deal only with the failure to give requests Nos. 2, 3 and 5 which were as follows:
"2. Market value is the price which in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy taking into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining.
"3. In the ascertainment of the market value of the plaintiff's property over which the highway was laid out, he is entitled to have it appraised for the most profitable or advantageous use to which it could be put at the time of the taking. . . .
"5. The measure of the plaintiff's damages is the difference between the market value of his land after the highway was laid out and constructed and what it would have been worth if the highway had never been established."
The material portions of the Court's charge to the jury were as follows:
"You are not to award damages merely for that particular piece of the property that was taken; you must take into consideration the loss of value of the entire tract of land. Merely because the land was not used for recreational purposes at the time it was taken is not entirely controlling. A man is entitled to have his property and to use it for its most valuable purpose, even at some future date. . . .
"Just compensation includes all elements of value that are inherent to the property, but it does not exceed the market value fairly determined. In other words, in accordance with the general rule which I have just given you, a man is entitled to have you determine the value of his property for the most profitable use that he would reasonably, eventually use it. That may be a little involved, but a man may have some property today that appears to have no value, but the State cannot take it and not give him a value that might be reasonably appraised at a later date."
The defendant claims, first, that the plaintiff waived his exceptions as he did not object to the instructions as given or point out precisely to the Trial Court at the time wherein he erred, and secondly, that the substance of the instructions was given. Further facts appear in the opinion.
A bill of exceptions was allowed by Tobin, J.
Burnham B. Davis and Robert W. Upton (Mr. Upton orally), for the plaintiff.
Ernest R. D'Amours, Attorney General and Gordon M. Tiffany, Assistant Attorney General (Mr. Tiffany orally), for the defendant.
It was the duty of the Trial Court "to fully and correctly instruct the jury as to the law applicable to the case" (Burke v. Railroad, 82 N.H. 350, 361), and to so phrase his instructions that it was reasonably certain the jury understood them. West v. Railroad, 81 N.H. 522, 532. In our opinion this was not done. Crediting the jury with sound common sense, still it cannot be said in view of all the conflicting claims made throughout the trial that they as laymen were bound to know the meaning of market value, or that they should have understood that this was the test to determine the amount of damages. See Trustees c. Academy v. Exeter, 92 N.H. 473; Emmons v. Company, 83 N.H. 181; Low v. Railroad, 63 N.H. 557.
It appears that the plaintiff's requests Nos. 1 and 4 are waived by his failure either to brief or argue them orally. While it may be argued also that the Court's instructions cover plaintiff's requests Nos. 3 and 5 in substance, they were not as clear a statement of the law as embodied in these requests. When taken in connection with the rest of the charge and the failure of the Court to define market value (plaintiff's request No. 2), or make it plain that this was the yardstick which must be applied in determining the amount of damage, it is evident the jury may have been misled.
The language of Peaslee, C. J., in West v. Railroad, supra, seems particularly applicable to the present case. There the opinion states with reference to an exception to the Court's charge (p. 531), "The test of the validity of the exception is to inquire whether `the jury could have been misled.'" On page 532 the opinion states that if instructions are not so framed as to convey to the jury as laymen "the proper thought . . . with reasonable certainty," the verdict should be set aside. Again on page 533 the court concludes that since "the chance of an erroneous understanding might have been obviated by brief explanatory statement, the exception must be sustained."
After the charge and before submission of the case to the jury, plaintiff's counsel twice excepted to the failure of the Court to give his requests Nos. 1 to 5 inclusive, without specifying the reasons for his exceptions. However, the Court had the power to request that this be done had he desired, and it appears that the exceptions were properly taken. Peppin v. Railroad, 86 N.H. 395, 401; Burke v. Railroad, supra.
The present opinion is not to be understood as implying any departure from the sound doctrine set forth in Dane v. MacGregor, ante, 294 and Beaudin v. Company, ante, 202. The Trial Justice should not be compelled to use the precise form suggested by a party (Bixby v. Railroad, ante, 107, and cases cited), or to charge the application of the law to every fact. Burke v. Railroad, supra. Much should be left to the sound discretion of the Trial Court. Dane v. MacGregor, supra; Colby v. Lee, 83 N.H. 303. But a charge which, in spite of proper requests, fails to clearly and accurately instruct the jury on a vital issue is ground for reversal.
New trial.
KENISON, J., did not sit: the others concurred.